Legal justice and caring

I’ve been working on a paper from ethnographic work i conducted at a health clinic a few years ago, looking at the intersections of care work and care ethics through the binds of governmentalities associated with health care provision. I’ve been stuck on the literature review about care and care ethics, not because it is a difficult literature to disentangle, but because every time i try to pull apart the strands, the question of how care fits into or with justice begins to emerge.

As i poked around through the books on my shelves and online, i opened Richard Ganis’ The politics of care in Habermas and Derrida: Between measurability and immeasurability. In his introduction, he presents two quotes, one from Barak Obama and the other from Republican Senator Jeff Sessions, relating to the nomination of Judge Sotomayor to the Supreme Court. On the one hand, Obama argued, there is a need to appoint a person with a sense of justice beyond abstraction and who is guided by the impact of laws on the daily lives of others – to be guided by empathy and a politics of caring. For Sessions, justice is not a question of politics but one of Constitutional rigidity in the protection of individual’s rights, where justice is blind.

Throughout the appointment hearings, the metaphor of baseball was bandied about – the judge being, of course, the umpire – impartial, calling balls only as they can be called by the rules in place. What strikes me about this equation of a (rather dull, i think) sport with the legal system is a threefold irritation: (1) of course this works in some people’s minds… for some people, we’re all on a “level playing field” (2) umpires aren’t, and can’t be, blind (3) to compare the stakes of a baseball game to the stakes of individual’s lives is a wretched mistake – grievous. It is devoid of humanity. It is in this, that the Trayvon Martin case has finally begun to make sense to me.

Like many people, i’ve been appalled by the verdict, the backlash, and the arguments supporting Zimmerman. On the one hand, i had a visceral emotional response. From the beginning, racism clearly had a role to play, a culture of violence had a role to play, a narcissistic vigilantism was at play. I have been a young person of color in a small town – been followed, been accosted, been molested, and even been beaten black and blue for being brown. I don’t care who hit whom first. In my teens year, if a man was following me in the dark, first in a car and then got out to approach me, i would have turned with fists flying. It’s easier to run away when the other person is on the ground. Then again, in court, Zimmerman’s case rested on the fact that he was returning to his car when he was hit.

On the other hand, i don’t understand the law. I am not a lawyer. My partner is – he and i tend to argue frequently about the purpose of the law. His is a pragmatism of what the law can do, not what i or others think it should be able to do. He, more than anyone, has taught me about the impotence of the law to truly protect people. It is, he reminds me every day, in place to protect power and property. It is not a moral question – it is a strictly legal question. I’ve written about this before – the legal codification of relations – and ultimately, this case was about “beyond a reasonable doubt” (and possibly poor prosecution).

As we come out from the trial’s verdict, many people have relied on the, “Well, that’s just our legal system – can’t get emotional about that” argumentation. This is not, i would argue, a case being tried in public opinion as some have argued – this is the system coming under scrutiny. The U.S. judicial system allows a defendant to be tried by a jury of his or her peers. And Zimmerman’s were cherry picked – a process not unheard of in cases like this – from a pool of 40 who made it past the 100 page questionnaire. Our legal system does not allow the victim a jury of his or her peers.

What should be on trial is the legal system itself, and because of the brave students of Dream Defenders, looks likely that it will – well, part of it anyway. But more importantly, what needs to emerge is a frank discussion about the role of empathy, caring, and ethics in the judicial system, itself. There have been, over and over, calls to overcome racism, that we’re All One Race – which is a lovely sentiment and i’m so glad people feel that way. But the reality is that we are not all treated as One Race. We are embedded in systems of oppression and imbalance.

Without acknowledging that, there is a twofold violence – the first of willful ignorance and blindness (and to blind one’s self to race and class oppressions is not to be “color blind” – it’s to be “oppression blind” – something everyone should be ashamed of); the second of absolute injustice. To rest on legal jargon and exercises to mandate relationships is to fail in the most important of ways – to fail to be a compassionate, caring, and thoughtful person. To depend upon the law to mandate right action is to give up moral and ethical action beyond the bounds of the self. It is to hand over the very thing the judicial system is meant to enforce, personal responsibility. At root is a primacy of property over lived experience – no matter how often you tell people they can’t take it with them…

 

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